New EEOC Guidance on Caregiver Discrimination Related to the COVID-19 Pandemic

Last week the EEOC issued new guidance concerning caregiver discrimination related to the COVID-19 pandemic. This signals an increased focus on caregiver discrimination by the EEOC. The guidance states, “The COVID-19 pandemic has significantly impacted employees’ work and personal obligations, creating concurrent and, at times, competing job and caregiving demands. Abrupt changes in work locations, schedules, or employment status required millions of Americans with caregiving responsibilities for children, spouses, partners, older relatives, individuals with disabilities, or other individuals to quickly adjust to vastly changed circumstances.”

The EEOC clarified that federal employment discrimination laws do not prohibit discrimination based solely on caregiver status. However, unlawful discrimination against a caregiver may occur when it is based on:

  • the employee’s or applicant’s sex (including pregnancy, sexual orientation or gender identity), race, color, religion, national origin, age (40 or older), disability or genetic information (such as family medical history);
  • the employee’s or applicant’s association with an individual with a disability or the race, ethnicity or other protected characteristics of the individual for whom care is provided; or
  • intersections among these characteristics (e.g., against Christian female caregivers based on religious and gender stereotypes).

Employers should also consider whether state or local laws provide greater protections to the employee or applicant and whether the Family and Medical Leave Act (FMLA) would apply.

The EEOC cautioned against gender stereotyping with regard to caregiver status, even if the employer is well intentioned. For example, an employer may not assume a female applicant would or should focus primarily on family caregiving responsibilities nor may an employer decline to assign female caregivers to or remove them from high-profile projects that may require overtime and overnight travel based on assumptions that it will make it easier for the female employee to juggle her work and personal obligations. On the flip side, employers may not discriminate against male caregivers based on gender stereotypes of men as breadwinners and women as caretakers.

The EEOC also stressed that employers cannot impose additional burdens on LGBTQI+ applicants and employees with caregiving responsibilities based on their sexual orientation or gender identity. For example, employers may not require proof of a marital or other family relationship with the individual needing care if the employer does not require this from other employees making such requests.

Likewise, employers may not discriminate against pregnant employees and applicants even if well intentioned. For example, employers may not demote or refuse to hire or promote pregnant individuals based on the assumption that they are or should be focused on ensuring safe and healthy pregnancies. Furthermore, if an employer provides light duty, modified assignments or work schedules or leave to employees who are temporarily unable to perform job duties for reasons other than pregnancy, childbirth or a related medical condition, such as reasons related to COVID-19, employers must do the same for employees who are temporarily unable to perform job duties because of pregnancy, childbirth or a related medical condition. Additionally, while pregnancy itself is not a disability under the Americans with Disabilities Act (ADA) or Rehabilitation Act, some pregnancy related medical conditions may be considered disabilities, and state and local laws may also afford pregnant and lactating workers greater protections.

With regard to disability discrimination, the EEOC explained that disability discrimination claims may be based on a caregiver’s association with a person with a disability, including with some individuals suffering from COVID-19 or its lingering symptoms. Therefore, for example, it would be unlawful under the ADA or Rehabilitation Act to refuse an employee’s request for unpaid leave to care for a parent with long COVID, that is a disability under those laws, while granting another employee’s request for unpaid leave to handle other personal responsibilities. Other examples include refusing to promote an employee whose child’s mental health condition worsened during the pandemic due to the assumption that the employee would not be fully available and committed to the job due to her obligation to care for a child with a disability, or refusing to hire an applicant whose wife has a disability that puts her at higher risk for complications from COVID-19 because the employer fears that this will increase its health insurance costs.

The EEOC also cautions employers against stereotyping and subjecting caregivers to different standards based on race or national origin. For example, an employer may not require additional proof of vaccination in response to an Asian employee’s request for leave to care for a family member with COVID-19 because COVID-19 was first identified in Asia, when this is not required of other employees, nor may an employer require that Black employees submit a written request for caregiver leave related to COVID-19 and wait a couple of days for a response when a verbal request with an immediate response is sufficient for white employees.

The EEOC guidance explains that the Age Discrimination in Employment Act (ADEA) does not require employers to provide older workers with a reasonable accommodations for caregiving duties related to the pandemic (or otherwise), such as leave, telework or flexible schedules. However, employers may choose to grant such requests by older workers. The ADEA does not prevent employers from treating older workers more favorably than younger workers in this regard, although state and local laws may prohibit this. Nevertheless, employers must be careful not to treat older workers differently with regard to caregiving responsibilities based on their age or age related stereotypes. For example, employers may not require an older worker who is caring for her grandchildren while her child recovers from COVID-19 to work a reduced schedule based on the assumption that the older worker would lack the stamina to work a full schedule while caring for her grandchildren.

Finally, the EEOC guidance reminds employers to be aware of and seek to prevent unlawful harassment and retaliation claims that can arise related to pandemic caregiving responsibilities. Examples of unlawful harassment include criticizing a male employee for focusing on performing pandemic caregiving duties; insulting an Asian employee caring for a family member with COVID-19 because COVID-19 was first identified in an Asian country; or mocking an employee for taking extra precautions against contracting COVID-19 when that employee is taking care of a disabled parent who is at higher risk for COVID-19 complications. Steps to prevent such harassment include frequent distribution of anti-harassment policies, anti-harassment training, prompt investigation of complaints and appropriate corrective action. Employers should also be mindful not to retaliate against employees who report caregiver harassment or discrimination, who participate in employment discrimination proceedings or reasonably oppose conduct they believe to be unlawful caregiver discrimination.

For more information, please contact Jennifer Anne Ermilio at jennifer.ermilio@stevenslee.com, Lisa Scidurlo at lisa.scidurlo@stevenslee.com or reach out to the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.

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